Con Law 03
Purposeful Discrimination
Purposeful discrimination can manifest in three ways:
Facial Discrimination: The law explicitly discriminates based on its terms.
Example: Strauder v. West Virginia
Strauder v. West Virginia (1880) established that a law explicitly prohibiting Black individuals from serving on juries is facially discriminatory. Such laws violate the Equal Protection Clause of the Fourteenth Amendment.
If a law is facially discriminatory, discriminatory impact doesn't need to be shown; the explicit discriminatory language is sufficient for a constitutional challenge.
Discriminatory Administration: The law is neutral on its face but is administered in a discriminatory manner.
Example: Yick Wo v. Hopkins
Yick Wo v. Hopkins (1886) illustrates discriminatory administration. A facially neutral ordinance regulating laundries was applied in a way that overwhelmingly penalized Chinese laundry owners, demonstrating discriminatory enforcement.
Discriminatory Purpose: The law is neutral on its face and applied accordingly but was enacted with a discriminatory purpose.
Evidence can include legislative history, legislator statements, disparate impact, or other circumstantial evidence.
Washington v. Davis: Disparate impact alone is insufficient to prove discriminatory intent but is a factor.
Washington v. Davis (1976) clarified that a law's disproportionate impact on a particular group doesn't automatically qualify as discriminatory. There must be evidence of discriminatory intent or purpose behind the law.
Racial discrimination that violates the Equal Protection Clause must be a product of discriminatory purpose.
Personnel Administrator of Mass. v. Feeney: To demonstrate purposeful discrimination, the statute must be enacted because of a desire to bring about a discriminatory impact, not merely in spite of the probability of such an impact.
Personnel Administrator of Mass. v. Feeney (1979) further refined the understanding of discriminatory purpose. The case emphasized that a law favoring veterans, even if it disproportionately affected women, was constitutional because the intent was to benefit veterans, not to harm women.
Present Court’s Position on Economic and Social-Welfare Laws
Purpose: The actual purpose is not necessarily considered.
The law is upheld if the means chosen by the legislature are rationally related to any conceivable legitimate legislative purpose.
This applies even if there's no evidence this was the actual motivating purpose.
Means-Ends Link: A real, empirical link between the means and the objective isn't necessary.
It's sufficient that the legislature could rationally have believed there was a link.
This is assumed as long as the means-end link is debatable.
Unpopular Trait: If the classification involves an unpopular trait or affiliation, the Court may apply a slightly more probing review.
Examples:
Mentally retarded people (Cleburne)
City of Cleburne v. Cleburne Living Center (1985) addressed zoning regulations that discriminated against a group home for mentally disabled individuals. The Court held that such classifications require a more probing review, though not strict scrutiny.
Gays and lesbians (Romer v. Evans)
Romer v. Evans (1996) involved an amendment to the Colorado Constitution that prohibited any protected status for homosexual individuals. The Supreme Court found this amendment unconstitutional, applying a more stringent form of rational basis review due to the unpopular nature of the trait.
Educational Discrimination
Brown v. Board of Education ruled that separate could never be equal but didn't overrule Plessy explicitly.
The ruling possibly rests on:
Social Science Evidence: Potentially weak due to its susceptibility to challenge.
The Brown v. Board of Education (1954) decision utilized social science evidence to demonstrate the harmful effects of segregation on Black children. However, this type of evidence can be seen as less robust and more open to interpretation.
Freedom of Association: Allowing free association between blacks and whites.
Drawback: Conflicts with the right of people not to associate with others.
The concept of freedom of association supports desegregation by allowing individuals to freely associate with one another, regardless of race. However, it also raises questions about the right of individuals to choose not to associate with certain groups.
Brown II:
Assigned federal district courts primary responsibility for supervising desegregation due to:
Proximity to local conditions.
Potential need for further hearings.
Provided no specific guidelines for desegregation, directing district courts to use general equitable principles.
Freedom of choice plans were deemed insufficient (Green v. County School Board).
Green v. County School Board (1968) rejected "freedom of choice" plans that did not effectively dismantle segregation. The Court emphasized that school boards had an affirmative duty to eliminate all vestiges of state-imposed segregation.
The Court emphasized the effect of desegregation measures, not just the intent.
Good intentions from the school board were insufficient where official segregation existed.
Ordered desegregation to be implemented with "all deliberate speed," a standard open to interpretation.
Cooper v. Aaron: The Little Rock school district was denied a delay in desegregation, emphasizing the need for a good-faith attempt to integrate without open hostility.
Cooper v. Aaron (1958) affirmed that states cannot nullify federal court orders. The case arose from resistance to desegregation in Little Rock, Arkansas, and underscored the supremacy of federal law.
Cooper indicates that states can't assert sovereignty to override federal action after entering the Union.
Swann v. Charlotte-Mecklenburg Board of Education
Key rulings:
De jure segregation must exist for federal courts to order racial composition adjustments.
Milliken v. Bradley: The remedy cannot include suburban school districts unless there was a cross-district wrong.
Milliken v. Bradley (1974) limited the scope of desegregation remedies to districts where de jure segregation was proven. It prevented the forced busing of students across district lines unless those districts were directly implicated in the segregation.
"The scope of the underlying remedy is determined by the nature and extent of the constitutional violation."
District courts can consider the ratio of black to white students but can't require every school to match that ratio precisely.
Single-race schools don't necessarily indicate a failure to desegregate.
Rezoning, even with non-contiguous zones, is permissible, but not in cases of de facto segregation.
Busing is permissible if it doesn't negatively impact student health or the educational process.
Once official segregation effects are remedied, later imbalances due to changing residential patterns cannot be cured by federal court order.
White Flight: Desegregation often leads to white flight.
Some courts tried to combat this with magnet schools, but Missouri v. Jenkins limits this power absent proof that the original segregation caused the white flight.
Missouri v. Jenkins (1995) restricted the ability of federal courts to order remedies aimed at attracting white students back to urban school districts. The Court held that such remedies must be directly related to the proven constitutional violation.
Segregated Colleges and Universities: States with a history of segregated university systems must show that any policies related to segregation have been abandoned or are necessary for sound education (US v. Fordice).
US v. Fordice (1992) addressed the lingering effects of segregation in Mississippi's higher education system. The Court ruled that states must take active steps to dismantle policies that perpetuate segregation, unless those policies are essential for sound educational practices.
Affirmative Action
Standard of Review: Strict Scrutiny (Croson).
Used whether the classification is benign or malign.
Individualized determinations are crucial.
City of Richmond v. J.A. Croson Co. (1989) established that strict scrutiny applies to all racial classifications, whether intended to be remedial or discriminatory. The case involved a minority set-aside program in Richmond, Virginia, which the Court found unconstitutional due to its lack of narrow tailoring.
Requirements for Racial Classifications: Must further a compelling governmental interest and be narrowly tailored.
Objectives Endorsed by the Court:
Redressing Clear Past Discrimination
Requires strong, specific evidence of past discrimination by the particular governmental entity.
General societal discrimination is insufficient.
Pursuit of Diversity in a Student Body
Public colleges can consider racial status as a factor but cannot use "points" or "quota-like" schemes.
Holistic review is necessary, treating race as one factor among others.
Quotas: Virtually all quotas will be struck down.
Defined as reserving a fixed number or proportion of opportunities for certain minority groups.
Includes point systems (Gratz v. Bollinger).
Gratz v. Bollinger (2003) involved the University of Michigan's undergraduate admissions policy, which assigned a fixed number of points to applicants from underrepresented minority groups. The Supreme Court found this policy unconstitutional, as it operated as an impermissible quota system.
Not a Quota: Programs with aspirational goals where membership in a certain group is a plus factor, part of an individualized determination (See Harvard Plan in Bakke).
Regents of the University of California v. Bakke (1978) addressed the use of race in medical school admissions. The Court struck down the school's quota system but allowed for race to be considered as one factor in a holistic review process, aligning with the "Harvard Plan."
Grutter v. Bollinger and Gratz v. Bollinger
Taken together:
Race-conscious admissions receive strict scrutiny and must be narrowly tailored to achieve a compelling objective.
Diversity in the student body can be a compelling objective.
A one-student-at-a-time evaluation is sufficiently narrowly tailored.
Mechanical approaches like fixed points are not narrowly tailored.
Grutter: O’Connor endorsed Powell’s view in Bakke that student body diversity is a compelling interest.
Compelling interest of the law school in having a diverse student body.
Deference given to a university’s academic decisions.
A critical mass of minority students is needed for meaningful representation.
Benefits from a broadly diverse class extend to society as a whole.
Goal of creating diverse elites.
Michigan’s plan was sufficiently narrowly tailored.
No quota system. Quotas are defined as fixed numbers or percentages, insulating individuals from comparison.
Minimum goals for minority enrollment are acceptable as long as there's no specific number firmly in mind.
Year-by-year variation in the number of underrepresented minorities is given weight.
Each applicant received a highly individualized, holistic review.
Non-minority applicants with lower scores were sometimes accepted.
Narrow tailoring does not require the exhaustion of every conceivable race-neutral alternative.
Sunset period of 25 years implemented.
Dissenting arguments:
Diversity was used as an aesthetic.
No compelling interest in maintaining an elite law school.
Naked attempt to achieve racial balancing.
Affirmative action is bad for its beneficiaries.
Gratz:
Point system unconstitutional because it was not narrowly tailored.
It did not conform to Powell’s opinion in Bakke.
Flagging applicants for special individualized review did not remedy flaws because not enough applicants would get this individualized review.
A large volume of applications is not a defense.
O’Connor’s concurrence: Pre-determined points prevented individual assessment.
The review process was a kind of afterthought and not an integral component.
Dissent: undergraduate review was the same as law school.
Implications of Grutter and Gratz
Core principle: Affirmative action to produce a racially-diverse class is preserved if admissions officers individually evaluate each applicant’s potential contributions.
Points are forbidden. There cannot even be a scent of a quota system.
Individualized review only for minorities is likely to be struck down.
Administrative convenience is not an excuse for dispensing with individualized review.
Preliminary point values might be acceptable if used solely to determine which applicants should receive intense individualized review.
Open Questions
How much of a plus factor is too much?
If the school used an individualized review system but gave race so much weight that still virtually every minimally-qualified minority applicant was accepted, would the plan be upheld?
Deference was afforded to the university in Grutter.
Will the core principle of pursuit of diversity as a compelling objective in Grutter be extended to other contexts beyond university admissions?
Probably not, unless outside of education in which Croson would govern.
University faculty probably because the same arguments could be used as for diverse university class.
Public secondary school faculty probably will not fly, but it would depend on O’Connor’s vote.
Choices of bosses where the workforce or population served is heavily integrated military, police forces in heavily-integrated cities, correction officer corps in heavily minority prisons.
Will the seemingly “gentler” strict scrutiny used in Grutter be used in other contexts?
No indication that this will happen.
What will be the rights of particular ethnic and racial minorities?
Members of particular underrepresented minority groups who are treated by Δ less favorably than other underrepresented minorities.
Probably no claim. It seems that schools can do what they want to achieve diversity as they define it, as long as there is individualized review.
Members of ethnic minorities who are not deemed to be underrepresented, and who therefore not only fail to receive a benefit, but, perhaps, fare even worse than whites generally.
Minority Set-Asides
Minority set-asides for construction contracts are subject to strict scrutiny and are often found unconstitutional.
Croson.
* Marshall, Brennan, and Blackmun would have applied intermediate scrutiny.
* Necessary findings to underpin such a plan include:
* Direct evidence of non-minority contractors systematically excluding minority contractors.
* Significant statistical differences between qualified minority contractors and those actually doing work.
* Individual instances of discrimination supported by statistical proof.Requirements for public entities wanting to use minority set-asides:
Make very precise findings that there has been past discrimination.
Eradicating the effects of intentional racial discrimination by the governmental body itself may constitute a compelling governmental objective.
Showing a danger that non-remedial government activity would compound the effects of past discrimination by others (even private parties) may also suffice.
Past societal discrimination is insufficient.
Past discrimination might be proven by inference with good statistics.
Goals Minority set-asides will probably have to be replaced by “soft” racial preferences, if racial preferences are allowed at all Richmond probably would have fared better if:
It expressed its objective as a goal or preference instead of a rigid quota.
It used race as one factor among many in deciding how to award contracts.
Even a goal or one factor among many plan will probably be struck down if:
There is no clear evidence of past discrimination.
There is no showing that race-neutral means would be inadequate.
All race-based programs are subject to strict scrutiny whether they are benign or malign.
Reasons include:
Difficulty in distinguishing between truly benign classifications and those motivated by illegitimate notions or simple politics.
Danger of stigmatic harm.
Necessity of strict scrutiny to achieve race neutrality.
Public entities must identify the discrimination, public or private, with some specificity before using race-conscious relief (Croson).
Rules for minority set-asides by Congress are the same as for other public entities (Adarand).
Adarand overturned Metro Broadcasting, which had applied intermediate-level review.
Adarand
Federalizes Croson.
* Applies to educational admissions, employment, and any other domain.
* The degree to which the minority preference determines the outcome will presumably be part of the equation when the Court decides whether the program is sufficiently narrowly-tailored.
Rebuttable presumptions are more likely to pass muster than irrebuttable ones.
Adarand leaves unresolved:
* What governmental objectives are compelling or how to tell whether the means chosen are sufficiently narrowly-tailored.
* Will Congress receive greater deference than state or local government bodies?
* Congress may be entitled to make nationwide findings which would allow it to protect some wide-sweeping programs.
* If Congress does get greater deference, it probably has to be for actions taken by Congress itself, not by administrative agencies.
* How does affirmative action play out in hiring, lay-offs, promotions, and other employment-related decisions?
* Obviously, the plan must be narrowly-tailored for a compelling governmental objective.
* The Court has alluded to 5 possible objectives in employment, only some of which would survive strict scrutiny:
* Redress of past discrimination
* By this employer golden
* Broader if in the same industry…maybe.
* Societal discrimination no
* Encouragement of diversity sometimes
* Balanced workforce no
* Furnishing of “role models” no
Gender-Based Classifications
The Court ostensibly applies a single standard to all gender-based classifications:
Any gender-based classification must be substantially related to important governmental objectives.
Exceedingly persuasive justification: The Court will now apply intermediate scrutiny in a quite rigorous way, which makes it closer to strict scrutiny than to mere rationality review.
Defenders must show an exceedingly persuasive justification.
Skeptical scrutiny will be applied.
Gender-based schemes are especially likely to be invalidated if older and stemming from stereotypical thinking, rather than combating past discrimination (U.S. v. Virginia).
Standard of Review
Intermediate scrutiny.
Any gender-based classifications must be substantially related to important governmental objectives.
"Mere rationality" standard was rejected in Frontiero.
Frontiero actually called for strict scrutiny, but this was reined in.
This standard of review is not universally fatal.
Most interests are considered important.
Exceptions:
Administrative convenience ( Frontiero)
Providing women with a “choice of educational environments” as a rationale for a single-sex admissions policy.
The objective must be the one that actually motivated the legislature.
"Substantially related" has more bite.
Some imprecision is allowed (Nguyen v. INS).
The Court is especially likely to strike down a gender-based classification system that seems to be based on faulty generalizations or stereotypes about the differing abilities and interests of the two sexes (U.S. v. Virginia).
Discriminatory Purpose Required
Π must show a discriminatory purpose, not just a discriminatory effect.
Even if legislators foresaw the disparate impact, it's not enough (Feeney).
A legislature's use of biological factors may have a disparate impact on the two sexes.
Only if the disparate impact was intended will the statute is struck down.
Where the statute itself explicitly differentiates based on sex, the Court will give heightened scrutiny to a justification based on biological considerations.
Not all schemes that treat the father of an illegitimate child less favorably than the mother will be struck down (Nguyen).
Public bathrooms, locker rooms, sleeping quarters, and other facilities related to intimate bodily functions generally remain sex-segregated.
General Principles of Intermediate Scrutiny
General principles: The precise way in which the court applies the intermediate scrutiny thus becomes extremely important.
Importance of objectives: The objective sought to be achieved by the statute must be important even if it need not be compelling.
This requirement has not proven to have a lot of bite, since most asserted state objectives have been found to be important.
However, there are some exceptions, such as administrative convenience, conservation of scarce resources, and offering a choice of educational environments to one sex.
Close means-end fit: The means chosen by the state must be substantially related to achieving the important objective.
Looking at this requirement another way, the demands of intermediate scrutiny are more likely to be satisfied if there are no available alternatives that would carry out the asserted objectives as well or better, without causing needless disadvantage to anyone.
One reason for requiring a close means-end fit is that it furnishes a way of flushing out unconstitutional motivation.That is, if the state claims that a particular objective was the motivation behind the statute, yet the means is not closely related to the ends, the court will be justified in suspecting that the asserted motivation was not the real one (which may have been an unconstitutional one).
Refusal to hypothesize state purpose: In the intermediate scrutiny area, the Court will not hypothesize a state objective. Only those objectives which are shown (by the terms of the statute, the legislative history, or otherwise) to have actually motivated the legislature will be considered.
Congress’s Power to Reach Private Conduct
The 14th Amendment applies only to state interferences.
The first time this issue came before the Court, in the Civil Rights Cases, Congress’s power got a very narrow reading.
A majority of the Court held that since only state action would violate the 14th Amendment, Congress’s enforcement power only permitted it to restrict state action, not private conduct.
In 2000, in US v. Morrison, the Court held that it is not within Congress’s § 5 powers to reach purely private conduct , even if that conduct interferes with rights protected by the 14th Amendment.
Held that the Civil Rights Cases still represented prevailing law.
Current state of the law:
Conduct not relating to public officials: When Congress tries to reach purely private conduct that has nothing to do with state officials, it is now clear under Morrison that Congress does not have this authority under § 5.
Interference with state officials: If Congress merely prohibits private individuals from interfering with state officials’ attempts to furnish equal protection or due process. Here it seems clear that Congress’s action does fall within its § 5 remedial powers, notwithstanding Morrison.
Private-state interaction: Where a private party acts in conjunction with a state official, it is quite clear that Congress may punish the private conduct.
Congress’s Power to Remedy Constitutional Violations, or to Modify Constitutional Rights
Broad “remedial” powers: Congress’s power to adopt remedial legislation concerning the 13th, 14th and 15th Amendments is extremely broad.
They can prohibit a state from acting a particular facially-constitutional law (e.g., literacy test for voting) if Congress merely has a reasonable fear that the effect (not the purpose) of the law will be to interfere with a right guaranteed by one of these Amendments.
Voting Rights Act of 1965 upheld by South Carolina v. Katzenbach.
Court held that Congress could use any rational means to enforce the 15th Amendment’s ban on racial discrimination in voting.
Demonstrates that Congress’s remedial powers under the 15th Amendment permits it to outlaw practices which the Court would not on its own find to violate § 1 of that Amendment.
Substantial Modifications: Although South Carolina v. Katzenbach broadly interpreted Congress’s remedial powers under the Reconstruction Amendments, it did so on an explicitly remedial theory.
Congress’s actions were viewed there as being designed to combat what, by the Court’s own opinions, constituted past or prospective violations of the Reconstruction Amendments.
In City of Boerne v. Flores, the Court decided that it is up to the Court alone, not Congress, to define the scope of Constitutional rights, even rights (such as those given by the 14th Amendment) as to which Congress has explicit remedial power.
Kennedy wrote that Congress has been given the power to enforce, not the power to determine what constitutes a constitutional violation.
Kennedy rejected an interpretation of Katzenbach v. Morgan which would give Congress this determination power. He said this would produce an unstable, easily-changed constitution.
Congruence and proportionality test from Boerne: Congress must have “wide latitude” in determining where the line is between an appropriate remedial provision and an improper substantive redefinition of a 14th Amendment right.
But, Kennedy said, there must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.
In other words, Congress cannot expand the substantive sweep of the Reconstruction Amendments.
Federal Attempts to Stop States from Discriminating:
Congress can only override state immunity from suit for money damages when it does so by using the 13th, 14th or 15th Amendment remedial powers to create a valid remedy against state violations of the rights protected by these amendments under the 11th Amendment (see below).
If Congress purports to rely on its Reconstruction Amendment remedial powers to pass general anti-discrimination or other statutes, and wants to make the states – not just private individuals – subject to the statute, Congress may do so and allow private individuals to sue states in federal court for violating it if the statute is a valid exercise of Congress’s remedial powers.
But if the statute goes beyond Congress’s remedial powers (if it violates the congruence and proportionality requirement of Boerne), then the private suits against the states are not proper and the states have immunity from the suits.
11th Amendment
Text: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any foreign state.”
Effect: Imposes limitations on the jurisdiction of federal courts.
The amendment is given broader interpretation that its language would suggest. To wit:
Bars suits by a citizen against his own state.
Blocks all suits by private citizens against states, whether based on diversity, alienage, or federal question.
Congress may not overrule the broad reading of the 11th Amendment and authorize states to be sued by their own citizens in federal question suits.
The Amendment applies to suits both at law and at equity. A private citizen cannot sue to have a state enjoined or ordered to do something, any more than she can sue to recover damages.
The 11th Amendment does not bar:
Suits by the federal government against a state.
Suits against cities or other political subdivisions of a state.
The 11th Amendment only applies in federal courts. It does not prevent a private individual from suing in a state in state court as long as the state court has jurisdiction.
If Congress passes a statute pursuant to its power under the 13th, 14th or 15th Amendments, and that statute gives private citizens the right to sue a state in federal court, this statute will be enforced and won’t be deemed to violate the 11th Amendment.
*Note: The same courtesy is not extended to statutes passed under the Commerce Power.*In Garrett and Hibbs, if the legislation can be justified as §